I understand contemporary politics. If you're a conservative federal appellate judge -- especially one who's relatively young -- and looking to potentially "move up" to the Supreme Court, you may perhaps want to make your mark by decrying the purportedly absurdly liberal jurisprudential world in which we now live. That'll attract attention. Maybe it'll make you famous, or advance your career. And, perhaps, a lot of what you say is even something that part of you may in fact believe.
Those are my thoughts, anyway, after reading Judge Lee's partial dissent in this death penalty case.
Judge Lee bemoans the fact that this federal habeas case reaches the Ninth Circuit a full thirty years after the state court trial. He's not the only one, of course, to discuss the lengthy delays in habeas death penalty cases. I've said the same thing, for example, on a plethora of occasions. This is not a novel observation.
These delays happen for a plethora of reasons. AEDPA. The Supreme Court's convoluted exhaustion rules. Underfunded -- or entirely unavailable -- habeas defense counsel. Briefing extensions repeatedly requested by the prosecution. All of which are inventions of conservative (not liberal) institutions.
Liberal practices -- defense requests for extensions, for example -- obviously result in substantial delay as well. But it's a systemic problem. One that neither side of the political spectrum, conservative or liberal, is justifiably positioned to politically exploit.
That aside, the point that Judge Lee makes today in his partial dissent seems particularly unpersuasive. He argues that habeas delays result in -- and I'm using his words here -- "a get out of jail card" for prisoners. Because the delays take so long, he argues, even people that are clearly guilty get to go free, since the delay means that memories have faded, witnesses have disappeared, etc.
That seems to me a uniquely cynical, and untrue, argument.
For starters, during the entire period of delay, the defendant is in prison. Often, as here, on death row; hardly a place that's particularly comfortable, even compared to usual (deploring) prison standards. The principal, and facial, result of habeas delay is thus not to get people out of prison, but to keep them in prison -- even if their habeas petition will eventually be successful and they don't deserve to be there.
So rather than a "get out of jail free" card, it might better be argued that habeas delays instead are a "wrongfully stay in jail" card. The exact opposite of Judge Lee's point.
And, to be clear, the overwhelming majority of habeas petitions accomplish nothing but precisely such continued incarceration. Study after study has found that only one percent of federal habeas challenges to state convictions are successful. And pretty much every single one of those studies was conducted before the Supreme Court made it, though repeated (and continuing) opinions, much harder to win federal habeas petitions.
But, for argument's sake, let's take that incredibly small number of cases where a habeas petition is granted. Where, despite the plethora of limitation on granting habeas relief, the defendant is able to jump through all of the relevant hoops, and establishes -- as required by the writ -- that his confinement in prison does, in fact, violate the most sacred of our legal documents: the Constitution.
What then?
Judge Lee contends that it's a get out of jail free card. Balderdash. Almost invariably, the guy gets retried and convicted again. Especially in those cases, like Judge Lee describes this one, in which the defendant is "obviously guilty". Judge Lee's dissent doesn't reference even a single case in which the federal courts granted a habeas petition in which the guy was obviously guilty (or admitted his guilt) and the granting of the petition resulted in the guy going free, rather than simply being found guilty at a retrial that satisfies the requirements of the Constitution.
Now, in the 250-year history of our great Republic, have there perhaps been instances in which someone has gone free as a result of a federal habeas grant? Assuredly so. But particularly given the infinitesimal rate of habeas grants, I strongly doubt it's a substantial number, or one that would in any universe allow someone to credibly call federal habeas review a "get out of jail free" card.
I would write more, but I fear I'm belaboring the point. Which is that, yes, particularly in death penalty cases, I'm on board for the proposition that 30-year delays are entirely suboptimal. We should work to change that system. Totally agree.
But "get out of jail free" card? No. Not in the slightest. Simply untrue.
